IDAT GMBH LICENSE TERMS AND CONDITIONS
These License Terms and Conditions (hereinafter also called the „License Agreement”) apply to proprietary software products of IDAT GmbH, Pfnorstraße 10, 64283 Darmstadt / Germany (the “Licensor”, also referred to as “IDAT” in the underlying AGB) as well as for software products resold by the Licensor and come into force and effect between you and the Licensor as of the date (the “Effective Date”), the software products are handed-over to you as the licensee (the „Licensee“, also referred to as the “Customer” in the underlying AGB) by the Licensor. The Licensor as well as the Licensee are individually also referred to as a ”Party” to this License Agreement, collectively as the “Parties”).
The Licensor reserves the right to make this License Agreement also applicable to a continued use of existing licenses to its products as of the following license term (also the “Effective Date”), if this License Agreement is provided to the Licensee in written form prior to commencement of the new license term and provided that the Licensee keeps using the non-terminated license.
Licensor is an IT company, engaged in the business of the development, sale and resale of software solutions for the construction industry. By doing so, it also acts as an authorized reseller of third-party software components, which may or may not be integrated as integral parts of its own software solutions.
Licensee is either a construction or craft business and intends to use the Licensor’s software for commercial purposes and construction processes.
This License Agreement (including any and all of its current and future Annexes) is based upon and refers to the agreed offer document (the “Offer Document”) as well as the general terms and conditions (“AGB”) of IDAT GmbH in each current version, both acting as integral parts of this License Agreement, and which together form the contractual basis of the Parties’ commercial relationship.
1.1. Temporary Use Rights (Subscription Licenses)
In the event the Offer Document contains the provision of a temporary use right (Subscription License) to the software products of the Licensor or its own licensors (the “Software”), the Licensor grants to the Licensee a simple, limited (in time and extent), nonexclusive and nontransferable license to use the software, as specified in the Offer Document, as well as to the respective user documentation as of the Effective Date.
1.2. Permanent Use Rights (Purchase Licenses)
In the event the Offer Document contains the provision of a permanent use right (Purchase License) to the Software products of the Licensor or its own licensors, the Licensor grants to the Licensee a simple, limited (in extent), perpetual, nonexclusive and nontransferable license to use the Software, as specified in the Offer Document, as well as to the respective user documentation, as of the Effective Date.
1.3. Subject to the signed Offer Document, Licensee shall, in the event of a provision of a license as described in sections 1.1 or 1.2, be entitled to install and use the Software for a limited amount of installations and/or for a limited amount of users during the License Term for its own commercial production purposes. The amount of installations can in no case exceed the amount of licenses set forth in the Offer Document without a contractual modification of the license.
1.4. The Software is considered to be in use by the Licensee as soon as it is handed over to the Licensee by the Licensor together with a valid license key. Using the Software on a server for the purpose of making the functionalities of the Software available to third parties (e.g. as” Software as a Service (SaaS)” is strictly prohibited. Furthermore, the granted license does not include the permission to sell, resell, sublicense or market the Software or the license itself.
1.5. Under this License Agreement, the Software is provided to the Licensee in object code form only.
1.6. Parts of the Software may be based upon legally used and licensed software of third parties (“white-labelling”), as well as on own technical developments and modifications made by the Licensor.
As far as set forth in the Offer Document, the granted license is limited to a certain territory. In the absence of such provision in the Offer Document, the license is granted worldwide. Reference is made to section 12 (Export) of the IDAT AGB.
1.7. Delivery of the Software to the Licensee is performed Ex Works (EXW Incoterms 2020) at the Licensor’s register place of business. Licensee is not entitled to reject delivery of the Software based on minor deficiencies, which do not materially prevent Licensee from using the Software. In the event of a rejection, the possibility of accidental damage, destruction or loss vests in and transfers to the Licensee. Reference is made to §377 HGB (Handelsgesetzbuch / Germany).
1.8. Upon special request, Licensor may, within a period of 24 months following the hand-over of the Software to the Licensee (see section 1.4), offer Licensee to convert existing, temporary use rights (3-month or 12-month Subscription Licenses) to certain software products into permanent use rights (Purchase Licenses) with the effect that, upon the date of conversion, the provisions with respect to Purchase Licenses will apply (“Subsequent License Conversion”). In such case, Licensor will submit a corresponding written conversion offer to the Licensee in accordance to the conversion conditions further described in section 2 of this License Agreement. A Subsequent License Conversion after the aforementioned 24 months term is not possible. A Subsequent License Conversion may not be available for all types of licenses or Software products.
1.9. Licensor may also offer the possibility of a “Subscription Purchase” to the Licensee at the beginning of the license term for certain license or product types. Such Subscription Purchase mandatorily needs to be set forth in the Offer Document, signed before initial handover of the license. Under a Subscription Purchase arrangement between the Parties, Licensee licenses IDAT software products on a monthly basis with a minimum term of 36 month from handover at special Subscription Purchase conditions. Upon expiry of the minimum term and upon Licensor’s receipt of the last monthly license fee from the Licensee, the corresponding Subscription Licenses automatically convert into permanent use rights (Purchase Licenses) with the effect, that from this date onwards, only annual support and maintenance fees may apply on basis of the then current IDAT pricelist, provided that Licensee wishes to further receive support and maintenance services. A Subscription Purchase may not be available for all types of licenses or software products.
2. License Fees
2.1. Upon handover of the license (see section 1.4 above), the Software is considered to be in use by the Licensee, which triggers license fees to become due and payable to the Licensor.
Based on the corresponding Offer Document, such license fees are monthly, 3-month or 12-month recurring (Subscription Licenses) or one time (Purchase Licenses) fees. Furthermore, if agreed in the corresponding Offer Document, the respective support and maintenance fees also become due and payable, which however, in case of Subscription Licenses, are already included in the Subscription License fees.
2.2. In case of an agreed Subsequent License Conversion of Subscription Licenses into Purchase Licenses within the 24 months deadline upon handover as set forth in section 1.8 of this License Agreement, Licensor will set 60% of all recurring license fees paid by the Licensee until the date of conversion off against the agreed license purchase price. The license purchase price, the included setoff of recurring license fees as well as the applicable subsequent fees for ongoing support and maintenance by the Licensor will be included in Licensor’s conversion offer document, separately.
A Subsequent License Conversion of monthly (1-month) subscription licenses is not possible.
2.3. In the event of a Subscription Purchase as set forth in section 1.9 above, formerly provided monthly Subscription Licenses automatically convert into permanent use rights (Purchase Licenses) upon expiry of the predefined minimum term of 36 months with the effect that no recurring license fees are owed to the Licensor from that point in time onwards. However, a separate support and maintenance arrangement will be required for the continued receipt of support and maintenance services by the Licensor. Reference is made to the terms of section 1.9 above.
2.4. Unless set forth to the contrary in the Offer Document, payment of all license fees under this License Agreement follows the conditions of the IDAT AGB in their then current version.
3. Technical Support and Maintenance of Software
3.1. Subject to full payment of the corresponding fees for support and maintenance as set forth in the Offer Document, Licensor will provide first level support and maintenance services for its own Software as well as for third party components of the Software in accordance with the “Annex Technical Support”, attached to this License Agreement. In case of Subscription Licenses, the recurring license fees as set forth in the Offer Document already contain the relevant fees for maintenance and support services during the term of the license. For as long as and provided that the recurring license fees are paid by the Licensee in due order, Licensee is entitled to submitting requests for technical support services and being furnished with maintenance services (e.g. updates, upgrades, bug fixes) by the Licensor as set forth in the Annex Technical Support to this License Agreement.
Fees for permanent use rights (Purchase Licenses) already contain fees for technical support and maintenance services by the Licensor for a period of 12 consecutive months from the date of handover (see section 1.4). In the event such support and maintenance services will not be renewed after the expiry of this included term, requested additional technical support and maintenance services will have to be paid on a case-by-case basis to the Licensor in accordance to Licensor’s then current standard rates.
In general, technical support and maintenance terms for Purchase Licenses automatically renew for additional 12 months terms upon expiry at Licensor’s then current standard rates, unless terminated by the Licensee giving the Licensor at least two months prior written notice before the end of the then running support and maintenance term.
Upon any form of renewal of support and maintenance services, the fees for the subsequent 12 months support and maintenance term will become due and payable to the Licensor in advance.
3.2. Support and maintenance services with respect to third party components will be provided within the Licensor’s technical capabilities. For the case that a request for technical support with respect to a third-party component cannot be sufficiently resolved by the Licensor, the Licensor will escalate the request to the corresponding third-party vendor for resolution. Upon request, the Licensee’s contact data may be forwarded to the third party vendor to allow for a direct communication between the third-party vendor and the Licensee.
For this case, Licensee hereby authorizes Licensor to forward his data for purposes of the fulfillment of its contractual duties.
Due to the fact that the Licensor may require information from the corresponding third-party vendor in order to provide support for third-party components, response and reaction times may vary. Reference is made to the Annex Technical Support, attached hereto as an integral part of this License Agreement.
3.3. Subject to availability, Licensor will provide updates, upgrades, bug fixes and modifications of the software to the Licensee during term of the corresponding license. However, Licensor is under no obligation to provide such updates, upgrades, bug fixes or modifications.
If updates, upgrades, bug fixes or modifications are provided by the Licensor, Licensee shall use/install those in its systems in order to allow for the continuing provision of support services and increase system security. If Licensee does not install updates, upgrades, bug fixes or modifications within a reasonable maximum timeframe of 4 weeks from the date of their release, Licensor will not assume any responsibility or liability with respect to any resulting failures or damages to the Licensee or third parties, and the provision of technical support services by the Licensor may be limited or impossible.
4. Professional Services
Any further development services to be performed by the Licensor, beyond those, specifically agreed upon in the Offer Document, may be ordered by the Licensee as additional services (“Professional Services”), separately and will be charged for by the Licensor at cost. Special terms for Professional Services are set forth in the Annex Professional Services, attached to this License Agreement and are also based upon the underlying IDAT AGB.
Subsequent requests for Professional Services will also be provided on basis of these existing legal frameworks and will be provided and charged for by the Licensor on basis of a separate offer and (if necessary) a specific “Service Description”.
5. Agreement Term
The term of this License Agreement will commence upon the Effective Date, set forth on page 1 of this Agreement and will remain in effect between the Parties until expiry of the last product license, provided to the Licensee under this License Agreement and the underlying AGB (the “Agreement Term”).
Unless set forth to the contrary in the Offer Document between the Parties and in accordance to the underlying AGB of the Licensor, Subscription Licenses have a product-specific minimum term of 1, 3 or 12 months from the date of hand over (see section 1.4), which automatically renews for successive similar terms until the license is terminated.
With respect to Purchase Licenses, the Agreement Term is undefined. This License Agreement as well as the underlying AGB of the Licensor will remain in force and effect between the Parties for as long as the contractually licensed Software will be in use by the Licensee. Even a temporary or permanent interruption of use by the Licensee does not impair the validity and effectiveness of the terms of this License Agreement and does not relieve the parties from their corresponding contractual obligations.
6. Contractual Framework
6.1. The contractual relationship between the Parties is based upon the following necessary document framework:
- Offer Document
- License Agreement (including Annexes)
- AGB of IDAT GmbH
The concept of speciality applies to these contractual documents with the effect that the Offer Document prevails the License Agreement and the License Agreement itself prevails the AGB in the event of discrepancies. The aforementioned three contractual elements form the entire contractual relationship between the Parties. Unless specifically set forth in the Offer Document, no side letters or arrangements have been made and all nonconforming/differing Licensee terms and conditions are hereby mutually disclaimed.
6.2. By signing the Offer Document and/or the License Agreement, Licensee expressly accepts and acknowledges the AGB of IDAT GmbH as an integral part of the Parties’ contractual relationship.
6.3. By signing this License Agreement, the signatories represent and warrant that they are legally or contractually authorized to bind Licensee and to act for or on behalf of Licensee. Missing power of representation does not cause invalidity of this License Agreement.
Annex Technical Support
Annex Professional Services
1. The special terms contained in this “Annex Technical Support” fully refer to the underlying IDAT License Agreement (the “License Agreement“) as well as to the Licensor’s AGB (“the AGB”).
2. Taking reference to section 3 of the License Agreement, Licensor provides first level technical support to the Licensee, provided that the then current fee for technical support and maintenance has been paid to the Licensor by the Licensee.
The provision of technical support services follows the terms and conditions of the Offer Document, the License Agreement as well as the Licensor’s AGB, unless specifically set forth differently in writing between the Parties. Without an existing arrangement for the provision of technical support and maintenance by the Licensor, requested support and maintenance services will have to be paid on a case-by-case basis to the Licensor in accordance to Licensor’s then current standard rates.
3. Licensor‘s technical support can be reached by the Licensee via email to the respective support team as defined on www.idat.de/support and is available during the Licensor’s standard business hours (Mo.-Fri. 09:00 am – 5:00 pm, excluding bank holidays in Hessen / Germany).
Upon Licensor’s receipt of a request for technical support by the Licensee, Licensor will confirm receipt of the request by email or if necessary by phone without undue delay, and will start working on a solution. The processing time may vary based on the complexity of the request and is further dependent on the fact whether or not third parties have to be involved in the resolution of the request.
4. Licensee will assign a severity classification to each of its requests for technical support on basis of the following matrix, which classification may subsequently be increased or decreased by the Licensor during the provision of technical support.
Severity Level Description
A central part or functionality of the Software or the Software itself does not work at all or does not respond with the effect that using the Software is impossible and dependent production processes cannot be performed.
The Software itself works and/or responds to requests, but a part of the software or functionality is not working with the effect that certain processes cannot be started. The software shows a deficiency by incorrect results.
The Software works as described, but questions with respect to using, setting-up or installing the Software remained unanswered.
Based on the assigned severity level, which may subsequently be increased or decreased by the Licensor, the Licensor will choose appropriate measures in order to sufficiently answer the request. Upon the provision of a solution or workaround by the Licensor, the request is either formally closed or the severity level gets re-evaluated by the Licensor via email.
5. For the case that the Licensee is not fully satisfied with the way the request has been handled, closed or with the severity allocation, Licensee may escalate the request to support-eskalatio(at)idat.de in its own discretion.
6. Licensor‘s technical support solely comprises of the provision of technical assistance to the Licensee with respect to the ordered and delivered Software products and functionalities. Individualizations, product developments, migrations, installations of updates or general development tasks (e.g. feature requests are not part of technical support but may be ordered from the Licensor separately as Professional Services (see Annex Professional Services) for cost. The setup, maintenance and administration as well as the recovery of the underlying technical infrastructure of the Licensee is furthermore no matter of technical support by the Licensor. Licensee is exclusively responsible for these matters and has to make sure that its technical infrastructure is and remains capable of achieving or overachieving the defined system requirements of the Software products at own cost.
7. Before and during the provision of technical support services, the Licensee will make sure that all relevant data will be saved and secured (e.g. by making prior backups). Licensor is not responsible for backing up data prior to the provision of technical support services. During the provision of technical support services, a reboot of the system may be required. Licensee will make sure that its production processes will not be impaired by this reboot. Licensor is not responsible or in any form liable for any damages or lost profits, based on the provision of technical support to the Licensee.
8. Unless specifically set forth to the contrary in this Annex or the corresponding Offer Document, the terms and conditions of the License Agreement as well as of the IDAT AGB are fully applicable to the provision of technical support by the Licensor. By signing the License Agreement, the Parties acknowledge and accept the terms and conditions of this Annex as well as of the IDAT AGB as integral parts of the contractual relationship between the Parties.
The special terms and conditions for the provision of Professional Services, set forth in this Annex fully refer and make reference to the underlying Offer Document, the IDAT License Agreement (the “License Agreement”) as well as the AGB of IDAT GmbH, forming integral parts of the commercial relationship between the Parties.
1. Additional Services
Besides licensing of Software to the Licensee by the Licensor in the course of the underlying License Agreement, Licensor offers the option of ordering further individual services (“Professional Services”) as part of the Offer Document or via a separate, written offer (also referred to as a “Service Offer” in this Annex), including a detailed service description (a “Service Description”).
During the provision of Professional Services, the Licensor is bound to the specifications and requested results, set forth in the Service Offer as well as its Service Description, which the Licensor will use as a basis for its services to a commercially reasonable extent.
The Licensor represents and warrants that Professional Services will at all times be provided in accordance to then applicable technical standards.
In order to initiate Professional Services, the Parties will agree upon and sign a Service Offer and an according detailed Service Description, which will set forth the objectives, expectations, the timeframe as well as the cost of the ordered Professional Services. Without a signed Service Offer including Service Description, Licensor is not obliged to provide any Professional Services. This is why all information, specifications and service definitions contained in the agreed Service Description are binding objectives between the Parties in respect to the configuration and implementation of the service deliverables. It is the sole and exclusive responsibility of the Licensee to clearly communicate and define all necessary and expected functionalities of the deliverables towards the Licensor in order to be listed in the Service Description. When providing Professional Services, the licensor exclusively owes the specifications and functionalities, defined in the Service Description. Expectations of the Licensee beyond those, listed in the Service Description are no element of the Parties’ contractual scope or Licensor’s deliverables. Licensee commits to abide by all applicable deadlines for the communication of specifications to the Licensor in order not to delay the provision of Professional Services.
Every Service Offer and Service Description fully and automatically make reference to the special conditions of this Annex as well as to the underlying License Agreement and the AGB of IDAT GmbH, unless specifically set forth to the contrary between the Parties in the Service Offer.
2. Change Management
In the event of necessary changes, modifications or extensions of the ordered Professional Services and the associated cost during the provision of those services, such changes, modifications or extensions will be set forth in a supplement to the corresponding Service Offer in a detailed way, signed by the Parties and thereby made part of the Service Offer. Service fees for provided services, which may become obsolete by the change, modification or extension of the service scope will not be refunded.
3. Extended Licensee Collaboration Duties
Besides the Licensee‘s general duty to collaborate as set forth in the License Agreement as well as the IDAT AGB, additional collaboration obligations are added in the course of the provision of Professional Services by the Licensor in order to allow the Licensor to provide such services to the agreed extent and within the agreed timeframe.
This collaboration may include the free of charge provision of necessary equipment, data, computer systems, testing facilities, workspaces as well as dedicated specialized employees and contractors of the Licensee, which are required to provide the necessary internal knowledge for the achievement of the intended results. Licensor is not responsible or liable for any shortcoming or underperformance in the provision of Professional Services, which are provably based upon a violation of the Licensee’s duties to collaborate.
The Licensor will inform the Licensee in writing (email suffices) of the finalization of the ordered Professional Services or the achievement of agreed milestones and will make the deliverables available to the Licensee for acceptance testing. Starting from the documented date of making the deliverables available to the Licensee (the “Delivery Date”), Licensee is obliged, within a timeframe of 14 calendar days from the Delivery Date, to inspect and test the deliverables thoroughly in respect to their conformance with the agreed specifications and functionalities as set forth in the signed Service Offer and Service Description.
In the event the deliverables conform with the specifications and functionalities agreed in the corresponding Service Description, Licensee will communicate its acceptance of the deliverables towards the Licensor in writing (email suffices) within the aforementioned 14 calendar day timeframe.
In the event, the Licensee is of the opinion that the provided deliverables do not conform with the agreed upon specifications and functionalities of the Service Description, Licensee will provide to the Licensor a detailed written report of all deficiencies within 14 calendar days from the Delivery Date under reference to the corresponding sections of the Service Description (a “Deficiency Report”).
If the Deficiency Report correctly shows discrepancies between the deliverables and the agreed upon specifications and functionalities contained in the Service Description, the Licensor will have 14 further calendar days to deliver the missing or incorrect functionalities or deliverables to the Licensee.
After a subsequent delivery by the Licensor, the Licensee will have another seven calendar days to retest the deliverables for conformance with the Service Description. This delivery and testing cycle will be repeated as long as necessary until acceptance will be reached. Acceptance may be communicated either via a written and signed acceptance statement by the Licensee or automatically by the Licensee not providing a written Deficiency Report within any of the aforementioned testing timeframes. Deficiency Reports which relate to deliverables not agreed upon in the Service Description will not trigger a new delivery and testing cycle or delay acceptance.
Furthermore, deliverables will be tacitly deemed accepted by the Licensee without a specific acceptance statement in the event, the Licensee will use the service deliverables for other than pure testing purposes (e.g. in its production environment).
5. Service Fees
Licensee commits to pay the agreed service fees for Professional Services, defined in the corresponding Service Offer, to the Licensor. Unless specifically set forth to the contrary in the signed Service Offer, 70% of the agreed upon service fees are due upon signature of the Service Offer, whereas 30% of the agreed upon service fees are due upon acceptance of the service deliverables as set forth in section 4 above. Additional necessary travel costs and other reasonable fees, which arose in direct connection with the provision of the services by the Licensor will be charged additionally. Unless the terms of the Service Offer or this Annex specifically stipulate differently, the provisions of the IDAT AGB regarding payment apply hereto, respectively.
All fees communicated or requested by the Licensor are net fees, exclusive of all applicable taxes, levies and charges of any kind. Reference is made to the underlying terms and conditions of the IDAT AGB.
6. Rights in and to Service Deliverables
Section 10 of the IDAT AGB also generally apply to deliverables of Professional Services. Unless specifically set forth to the contrary in the Service Offer, any and all intellectual property rights in and to service deliverables, inventions, technologies and the source code of service deliverables vest in and remain with the Licensor and its own licensors. In accordance to the terms and conditions of the License Agreement, Licensee will solely be granted with a limited right to use the service deliverables.
7. Termination and Interruption
In the event the Licensee will be late with any of its contractual obligations resulting from the License Agreement, the AGB or this Annex, the Licensor is entitled to interrupt the provision of Professional Services and the delivery of the corresponding service deliverables until the Licensee’s obligations will have been fulfilled. Such interruption will in no event cause the Licensor to be in default of delivery. All delivery timelines will automatically be deemed extended by the duration of a reasonable interruption.
Professional Services may at any time be terminated by either party in writing. In the event of a termination of Professional Services by the Licensee, the Licensee will have to pay a prorated part of the agreed service fees to the Licensor with respect to services and costs of services, which have been provided or have accrued up to the date of service termination or for which the Licensor has already provided comprehensive preparation measures.
8. Reference to License Agreement and AGB
Unless specifically set forth to the contrary in this Annex or a corresponding Service Offer, the terms and conditions of the License Agreement as well as of the IDAT AGB fully apply also to the provision of Professional Services. By signing the License Agreement, the Parties acknowledge and accept the terms of this Annex as well as the terms and conditions of the IDAT AGB, both as integral parts of the contractual relationship between the Parties.